Published 6:30 am, Wednesday, December 19, 2007

These are two of the questions that courts may sort out as they determine whether a new $5 tax (Cohen and other politicians would prefer we call it a fee) on customers of jiggle joints violates the Texas and U.S. constitutions.

Cohen was the lead author of a law passed by the Legislature last spring that is expected to generate tens of millions of dollars a year for sexual violence programs ranging from rape crisis centers to sex offender treatment.

Lawyers for the state's public purveyors of private parts went to court Tuesday to try to temporarily prevent the state from collecting the fee. They lost, but the real battle remains to be fought, most likely into appeals courts.

Huey Long's muzzling tax

The lawyers argue that nude dancing, like newspapers, is protected by the First Amendment and therefore cannot be taxed.

According to a textbook called "The First Amendment & the Fourth Estate: The Law of Mass Media," the first U.S. Supreme Court case to take up that question was in the 1930s when Gov. Long attempted to muzzle the major newspapers in Louisiana, who were not partial to his populist postures, by levying a gross receipts tax on publications with circulations of more than 20,000 copies per week.

The Supreme Court unanimously overturned the tax, which affected only the major newspapers.

The court ruled that the tax resulted in pressures toward prior constraint because it would encourage publishers to hold their circulation under 20,000, thereby depriving citizens of information.

Concern for lower classes

I suppose lawyers for the lairs of the libido could argue that the $5 fee would effect a prior restraint, depriving cash-strapped would-be customers from obtaining certain information, but the prices some of these places charge for cheap champagne would not buttress their professions of concern for the lower classes.

Their better argument may, ironically, be in a case the very next year in which the Supreme Court made it clear it saw no overall conflict between the First Amendment and taxation.

Arizona had passed a tax on a wide array of businesses. Based on the Huey Long case, a newspaper publisher sued.

The Arizona Supreme Court told him to pay up.

The problem with the Huey Long case, it said, was that a few newspapers had been singled out.

Arizona newspapers had not been. The U.S. Supreme Court declined to take the case, saying there was no federal question.

The Supreme Court did strike down a Minnesota tax in 1983, again because it hit a very narrow sector of the publishing industry.

The tax applied only to publications that spent more than $100,000 a year on ink and paper. Only 11 publishers with 14 newspapers (of 388 in the state) were covered, with the Minneapolis Star & Tribune Co. accounting for two-thirds of the revenue.

The court wrote that no justification was given for why these particular newspapers were targeted for the tax.

Rep. Cohen did offer a justification for her tax. And it wasn't the justification offered to Dallas Morning News columnist Bud Kennedy two years ago by Rep. Will Hartnett in support of a similar bill.

Calling owners of erotic emporiums "unsavory folks," Hartnett said, "The power to tax is the power to destroy."

"I'm not the morals police," Cohen said. "That's not what I'm doing it for."

She said it made sense to assess the fee on a sex industry that employs women to fund services to deal with sex crimes against women.

She said she was overwhelmed by the support she received — the bill passed by 112-21 in the House and 28-1 in the Senate.

But she was surprised at the ignorance she found among our elected officials.

"Not having visited one of these places, myself, I went around the floor asking my colleagues about such things as how much these clubs charge for drinks and so on," she said. "You'll be pleased to know there is not one person on the floor of the House who has ever visited one of these places. My colleagues are as pure as the driven snow."

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